R. v. SO CHI-CHUEN

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J U D G M E N T

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Hon. Yang, C.J.:

1. The applicant faced three charges before His Honour Judge Surman in the District Court, namely - (1) Possession of a dangerous drug, (2) Possession of a dangerous drug for the purpose of unlawful trafficking, and .(3) Possession of apparatus fit and intended for injecting a dangerous drug. He pleaded guilty to the first and the third charges and not guilty to the second charge, upon which he was convicted after trial. He now seeks leave to appeal against that conviction.

2. The evidence for the prosecution was that at 2.30 a.m. on the 14th October 1989, ..the applicant and another man were seen by the police on the ground floor of 325 Castle Peak Road. In front of the men was an unsealed packet containing a small quantity of heroin together with various syringes and other paraphanalia for the injection of dangerous drug. These formed the subject matter of the first and third charges.

3. The evidence in respect of the second charge was that the applicant produced from under a bench a black bag containing nine small packets totalling 69.88 grammes of a mixture containing 4.15 grammes of salts of ester of morphine.

4. According to the Sergeant who was at the scene, the defendant did not say anything to him though another police officer, who was also there, gave evidence to the effect that the applicant said to. the sergeant, "Don't ransack the area - I am going to take it out.". After the applicant was arrested, the applicant said the drugs were for his own consumption. This admission was supported by the cautioned statement which the judge admitted into evidence.

5. In his evidence the applicant denied producing the bag which contained the nine packets and he also said that when he admitted to possession of the drugs for his own consumption, he was not referring to the large black bag, but to the smaller quantities on the floor. His evidence was rejected by the learned judge.

6. Accepting the evidence of the police officers, particularly on the production by the applicant of the drugs in the black bag, and on the statement made by him at the scene of arrest, the judge found that the applicant was in possession of the drugs contained in the bag. The judge then concluded that the onus shifted on to the applicant to satisfy him, on a balance of probabilities, that he did not have the drugs for unlawful trafficking. Having considered the evidence, the judge said no sensible evidence was forthcoming from the defendant about this, whereupon he found the applicant guilty of the second charge.

7. While it is conceded by the prosecution that the wording of the Reasons for Verdict could have been more felicitously drafted, in our view, the meaning cannot be doubted. The judge, if one reads the Reasons for Verdict in their proper context, must have considered all the evidence and come to the view that he did.

8. Under the first ground of appeal, it is argued that the judge failed to consider whether there was sufficient evidence to establish the applicant's possession of the bag containing the dangerous drugs before producing it to the police searching the scene. It was further argued, under the same ground, that the applicant's physical production of the dangerous drugs to the police could not have been for the purpose of unlawful trafficking. In our view, and for the reasons already stated, there is clear evidence upon which the judge could find that the applicant was in possession of the black bag and therefore also in posssession of the dangerous drugs inside it. Having rejected the applicant's evidence, the judge was, on the evidence as a whole, justified in coming to the conclusion that the presumption had not been rebutted by the applicant.

9. The second ground of appeal argues that in the circumstances, the presumption of trafficking could not arise. For the reasons already stated, this ground of appeal must fail.

10. Thirdly, it is argued that the judge misdirected himself that the failure of the applicant to rebut the presumption of trafficking alone led to the charge being proved. The complaint here is that the judge failed to consider certain aspects of the evidence which might have gone to rebut the presumption, i.e., evidence of recent injection of the drug, possession for the purpose of his own consumption and the circumstances of the handing over to the police of the larger bag containing the dangerous drug. As we have indicated earlier, on the evidence taken as a whole, there is ample evidence upon which the judge could come to the conclusion that he did.

11. The application for leave to appeal against conviction is accordingly refused.